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Food-Borne Illness Archive

Listeria outbreak linked to apples serves as reminder of the liabilities food businesses can face

January 12, 2015

by Lauren Handel

The recent outbreak of Listeria monocytogenes linked to commercially-produced caramel apples, has been traced to the apple distributor, Bidart Brothers of Bakersfield, California. As of January 9, 2015, the outbreak has caused 32 people to become infected in 11 states and contributed to three deaths. Bidart Brothers and three manufacturers of caramel-covered apples have issued recalls.

imgres-3Events like this remind us that food — even a product as seemingly innocuous as an apple — can be dangerous. For that reason, it is critically important that growers, manufacturers and other sellers of food products employ rigorous food safety practices to try to prevent hazards and plan ahead to be able to effectively recall products in the event that something goes wrong.

It is also important to understand that, no matter how careful a food manufacturer or supplier may be, it can be held strictly liable for all damages caused by contaminated food. Strict product liability means liability without regard to fault. In other words, an injured party may recover without having to prove negligence or intentional wrongdoing. The only way for a business to protect itself from such liability is to have insurance and contracts that appropriately put the responsibility for losses on the party that caused the harm. Food manufacturers and sellers, therefore, should make sure that their business liability insurance includes adequate product liability coverage and that their agreements with suppliers and customers include enforceable indemnification and insurance provisions.

Raw Milk Liabilities and Independent Certification

August 15, 2014

by Jack Hornickel

NPR recently highlighted a new tool for raw milk producers: third-party quality control standards and independent certification. The Raw Milk Institute (RAWMI), a non-profit that supports a strong and safe raw milk industry, has published safety criteria for raw milk producers. If farmers meet RAWMI’s Common Standards and draft an adequate Risk Analysis and Management Plan, they can be listed on the RAWMI website as exemplar producers of “reliable, clean raw milk.” Doctors, veterinarians, epidemiologists, farmers, and consumers all participated in developing the safety measures.

The Common Standards include water and milk testing that probes for the presence of coliforms, salmonella, listeria, and E. coli. They also require testing the dairy herd to ensure the animals are free of tuberculosis and brucellosis. The Risk Analysis and Management Plans are developed uniquely for each farm. Generally they must address contamination risks that occur during animal transportation, cleaning of milk containers, management of bedding and manure, feed storage, and contact with farm employees. The Plan mandates responsible reflection on the entire dairy process and seeks to identify all points where contamination can occur, thereby mitigating risk.

By mitigating the risk that a consumer may become ill, RAWMI’s standards should also minimize exposure to civil lawsuits. However, compliance with such voluntary standards will not immunize a raw milk producer from civil liability or from criminal liability where raw milk sales are illegal. Because raw milk laws are different in each state, the independent certification offered by RAWMI will have varying effects depending on the location of the farm.

In New York, for example, dairies can sell raw milk from the farm after receiving a license. The standards for obtaining a license are similar to the RAWMI Common Standards but require additional testing for staphylococcus and organisms that cause mastitis in dairy cows. New York also requires farmers to post a sign reading, “Raw milk does not provide the protection of pasteurization.” Thus, raw milk producers that are independently certified by RAWMI are well on their way to being licensed by the state. By taking a few extra steps, farmers would be shielded from criminal liability.

New Jersey is another story. In that state, all sale of raw milk for human consumption is illegal. The RAWMI certification will do nothing to protect a New Jersey producer from criminal prosecution. In fact, listing on the RAWMI website is likely to draw attention to the illegal enterprise, and the paper trail of bacterial testing and food safety plans is evidence that can be used in a prosecution. Here, independent certification would raise the chances of criminal liability, despite the farmer’s honest attempt to provide safer food.

Now for the final twist: RAWMI’s standards will have only a minimal effect on farmers’ civil liability. In every state, raw dairies face strict liability in civil lawsuits for harms caused by the food products they sell. If anybody becomes sick from consuming a raw milk product, the producer can be held liable for the consumer’s injuries, even if the producer followed the highest safety standards. Raw dairies, like all food producers, have an absolute duty to make a safe product. The only effects RAWMI’s certification could have in a civil lawsuit might be to insulate the farmer from a negligence claim, an alternate theory on which a consumer could sue, as well as punitive damages.

RAWMI’s certification is a practical step forward, falling short of a legal solution. The Common Standards and Risk Analysis and Management Plan are a laudable attempt to legitimize and create industry-wide standards for the raw milk industry. However, they will have varying effects on farm liabilities, and farmers still must continue to navigate the patchwork of state laws. For a comprehensive guide to state raw milk laws, visit the Farm-to-Consumer Legal Defense Fund website.

California’s Glove Law: Second Thoughts

April 16, 2014

by Gabriella Agostinelli

Last January, California became the 42nd state in America to enact a law prohibiting bare-hands contact with ready-to-eat foods and beverages.  Under the law, human skin cannot touch anything that has been cooked or can be served immediately, such as bread, fruit, deli meat, sushi, and cocktail garnishes. In the face of major opposition to the new law, the State Assembly’s Health Committee – the very committee that proposed the law – has now unanimously voted for the law’s repeal.  A new bill, which would restore the health code to its previous standards, is now on track to be considered on the Assembly floor.

California had strong public policy concerns when enacting the law. Nearly 1 in 6 Americans (48 million people) are sickened annually by food poisoning. A new study released this month also indicates Americans are twice as likely to get food poisoning from food prepared at a restaurant than from food prepared at home.

Despite lawmakers’ good intentions, the California food and beverage service industry has been swift to point out the law’s many impracticalities. Under the law, you can throw a steak on the grill barehanded, but you better glove-up when plating the cooked meat. Want some lime or ice in your cocktail? Give your bartender time to grab some latex, tweezers, or other kitchen tools first. And don’t forget: every time a bartender takes your money, she will need to replace her gloves. Every time a bartender grabs a glass you have sipped from, it becomes “contaminated” and she will once again need to change her gloves. Sushi chefs, notorious for their reliance on “touch” when crafting seafood delicacies, contend that wearing gloves interferes with this crucial sense. Beyond the inconvenience of wearing and replacing gloves, critics also suggest wearing gloves will affect the taste of food and beverages. (Think: the essence of latex and powder in your mojito.)

Since January 1, more than 18,000 individuals have signed petitions asking for the law’s repeal or to exempt bartenders from the law. Opponents of the law condemn the cost and environmental impact of buying and disposing of millions of latex gloves annually. They also argue that glove use presents a risk of cross-contamination, that the law affords inconsistent exemptions, and that it may create a false sense of security.

The story of California’s glove law demonstrates that, when creating food law in the name of public safety, legislators may not give due attention to practical concerns and costs to industry. It is encouraging that the Legislature is now considering these practical issues.

Science and Compliance-Developing a Food Safety Plan

May 21, 2013

Mark your calendar for June 6th from 11:30am-12:30pm. Along with Dr. Michele Pfannenstiel of Dirigo Quality Meats, we will be hosting a live audio conference designed to provide food industry professionals with the essential information they need to begin building a comprehensive food safety plan. Get started with a thorough grounding on the law and the science of food safety, as we explain how to gain a thorough understanding of the legal consequences of a food-borne illness outbreak, the major components of the Food Safety Modernization Act and provide an overview of HACCP.

Sign up here! You dont want to miss this.

How to Invest in a Food Company: Hidden Compliance Costs in the Food Business

May 2, 2013

Via Allen Olson, the NYT reports that the food industry is beginning to draw some solid speculative capital these days. Venture capital firms are getting behind food companies like Unreal, Lyrical Foods, and Beyond Meat. Good news. One of the biggest problems my clients face is access to capital whether they grow food or process it. Either their businesses are so new they lack the track record to establish credit with commercial lenders, or commercial lenders – particularly from the farm credit system – lack faith in new business models like micro-green production.

If you’ve got some cash you want to put into a food business, don’t just look at financial information like production costs and sales data. My advice is to do a thorough regulatory compliance audit in addition to the financials. Food is probably the most comprehensively and intrusively regulated industry in the United States, and you never know what you might find in such an audit. A food business may produce a great tasting cookie with solid sales, but still be non-compliant with the Food Safety Modernization Act, lack adequate insurance coverage for a recall event, or improperly use labeling claims like “Gluten Free” or “Great Source of Omega 3″. If a business has already taken these things into consideration, it is a very good sign that it is professionally run and a decent bet. If not, you could be investing in a company destined for a hefty fine, a revoked license, or a civil liability judgement.

And if a food business seeks to raise capital using the financiers discussed in the Times article, it’d be dumb to walk into a pitch meeting without these kinds of considerations on-book.

Food Law Advice for Restaurants That Source Their Own Ingedients

September 12, 2012

My restaurant clients always tell me how maddening and insufferable it is to be asked repeatedly “Is it local?” by their patrons. Though they appreciate the curiosity and the enthusiasm of their customers, owners are already very, very aware of the pressure to do their own sourcing. The Nation’s Restaurant News has some excellent guidance for restaurants looking to make a connection with a local source in “Five Steps to Local Sourcing For Restaurants”.

A few suggestions of my own from the Food Law toolkit:

1. Risk management. If a restaurant plans to do its own purveying, it has to assume the food safety management role of a broad line distributor like Sysco or Chef’s Warehouse. The food safety geeks at the big distributors always have a thermometer handy, they periodically inspect their producers’ facilities, and they will not do business with a producer who does not agree to assume most of the food safety risks inherent in the production process. Any restauranteur who wants to source locally has to be equally scrupulous. The food safety on some farms is superb, but it is not always the case. It is possible to screw up something like spinach and grievously injure a bunch of people without regard to farm size. Strict liability, a food product liability doctrine I rhapsodize about often, places liability for the injured customer on the entire food chain. That means everybody in the supply chain has the obligation, both moral and legal, to police each other.

A restauranteur might want to read a few good books on food production safety, or contact a local agricultural extension office for guidance on good agricultural practices. That should arm the restauranteur with enough information to ask the farmer the tough questions (Do the chickens have free reign of the area where the snap peas are grown? Do farm laborers have access to field sanitation? Why is there a cat running around the creamery where the artisanal cheese is made?) Conduct a site visit of the place where you source. If you see puddles of motor oil underneath the old tractor adjacent to the melons, move on to another source. Do not deal with amateurs – they are more likely than professionals to cause harm somewhere in the food chain. If you don’t get the impression that safety is a priority, or if they give you some mumbo jumbo that food safety is only a problem on “conventional” farms, the person is deluded and you should move on.

2. Contracts. If you truly want to support local producers, offer to pay for the crop before it is put in the ground. The truly professional farmers hate economic risk and will commit their time and dirt to grow for you if you make a legally enforceable promise to buy before the season begins. This is done all the time in the agricultural industry, and this practice is starting to trickle down to the small, local farms. Of course, a contract can and should include criteria for quality control, condition of goods upon delivery, and time of delivery. If the farmer fails to deliver, the restaurant can always go right back to the broad-line distributor, so the risk to the menu and the restaurant is minimal in the event of default.


Fail A State Mandated Inspection, Suffer a Food Recall

July 23, 2012

We tend to associate food recalls with food-borne illness, but outbreaks are not the only source of product recalls. Food product recalls can also be initiated by the caprice of government inspectors, even if no one has been made ill. Our latest guest blogger, Emily Cajigas is here to elaborate:

     When news of food recalls hits headlines, a tale of contamination usually ensues. Salmonella, listeria, E. coli and other pathogens are frequently cited culprits for nationwide recalls of our most familiar food products. Yet contamination is not the only cause of a food recall. Failure to follow mandatory production regulations may result in product recalls as well. Such products, though they may not necessarily pose harm to the public, may result in costly recalls.

     This past week, the FDA announced that Productos Tita Corp. voluntarily recalled their Quesito Colombiano Colombian Cheese after it was discovered by a New York State Department of Agriculture and Markets’ milk inspector that the milk used in production of the cheese was improperly pasteurized. According to Article §7.2 of New York Agriculture and Markets Law §§18.67-b.214b;

“No person shall release cheese or cheese curd to the retail trade or to any public eating place or to any institution or to any consumer unless such cheese or cheese curd has been either:(a) pasteurized; (b) made from pasteurized milk; or (c) held after manufacture for a period of not less than 60 days at a temperature not lower than 35 degrees Fahrenheit.”

     This pasteurization requirement is enforced by certified milk inspectors who ensure that producers meet New York State licensing requirements. For “Plant Operators”-i.e. any person who operates any single location or mobile unit which pasteurizes fluid milk or manufactures milk into other dairy products- routine inspections are held every 90 days.

     A routine inspection of a plant can have huge financial ramifications for a non-conforming facility. Under the FDA Food Safety Modernization Act of 2010 (FSMA), the FDA now has mandatory recall authority over domestically produced food products. This power may be asserted via state inspection agencies.  §202 of the Act allows the FDA to expand state recalls:

“If sampling and testing performed by an accredited State or local laboratory results in a State recalling a food product, the FDA is required to review the sampling and testing results to determine the need for a nationwide recall or other enforcement actions.”

     So what might start out as a slight failure to live up to state inspection standards can result in the nationwide recall of a product, despite no per se record of illness or public harm.

     Strictly adhere to production guidelines, but have a backup plan – recall insurance. Many general liability policies do not include coverage for product recalls. Review your policy to see if you are covered. If you aren’t, talk to your provider about whether it is a fit for your business based on your scale. Accidents happen, but when they do, it is wise to cover the bases. A recall of any size is a financial hardship. 

Emily is psyched to be writing about Food Law on our site. She’s a fellow NY attorney, fresh off of an LLM program at Universite de Cergy-Pontoise, and she loves food. She’ll fit right in around here, and we hope to be hearing from her again, soon.  

Cantaloupes and Food-Borne Illness Liability

October 7, 2011

I am behind the news curve due to some joyous personal developments which have left me lately preoccupied. I have been very eager to write about the cantaloupe recall because it underscores an important legal liability faced by farmers and food entrepreneurs.

Last summer we were all entranced by the recall of 500 million eggs infected with salmonella enteritidis. The majority of the contaminated eggs came from an Iowa company called Wright County Eggs. During the height of the media frenzy, The Atlantic did an awesome hit piece on Jack Decoster, owner of Wright County Eggs and ovum super-villain. The article is a comprehensive list of Decoster’s labor disputes, child labor violations, beetle infestations, mass chicken graves, explosive OSHA violations, dung-mountains, plagues of flies, and horrific record of animal abuse. As you read it, keep in mind that the Atlantic article does not mention the equally horrifying conditions in the plant which produced the contaminated products. His cartoonishly excessive corporate malfeasance made a deadly outbreak inevitable.

Contrast this with the family-owned farm responsible for the current cantaloupe crisis. Jensen Farms is a commercially successful operation with a solid reputation. By all accounts, the family members do their best to run a reputable farm which is well-respected by peers. I am sure they were stunned to hear that their products ended up hurting and killing people. Check out the 00:48 mark on this Youtube vid – Eric Jensen is so genuinely grief stricken by the illnesses that he can barely get out a sentence without breaking down. Notice that there is no slick PR rep performing triage for the cameras. It’s just a hard working, honest farmer trying to come to terms with a terrible stroke of bad luck.

I began this post about cantaloups by talking about eggs to demonstrate the principle of strict liability for food producers who sell contaminated products. In the eyes of the law, Jack Decoster and Eric Jensen are equally culpable for the illnesses caused by their food. Strict liability in tort law makes a person liable for the harm caused by their food products without regard to negligence, misbehavior, malfeasance or even gross disregard for consumer safety. It is the highest level of responsibility imposed by civil law and it is the standard of care imposed by the majority of states upon their farmers and food entrepreneurs. Civil liability attaches to any producer who puts a dangerous or contaminated food product into the stream of commerce. This is true whether a food producer behaves like Jack Decoster, Scourge of the Caged Hen, or the eminently reputable and consciencious Jensen Family.

Strict liability is a potentially enormous risk for any agricultural or food business, but it is not beyond control. A professional consultation will identify if you live in a strict liability state. You can also have your business structure audited to ensure that your personal assets are protected from the damage caused by your farm or food product. You may also want to have your business practices assessed to see if some higher-risk activities, like the marketing of raw milk, should be abandoned altogether. No matter what, if you are in the food business, you need to involve a professional in your risk management strategy. Continued ownership of your land may one day depend on it.